I enclose copies of the government's trial brief and superseding indictment.
These are not on my computer or I would just e-mail them to you.

I have a copy of the 59 page Report
of Investigation dated 3/27/99 from the
Carl Johnson web site. This is
proving to be helpful in the case and is slightly more detailed than the
pre-trial discovery they are required to provide to defense counsel. I am
curious how this was located and what is necessary to access the report,
in this and other cases. I am assuming it is public record somewhere. Perhaps
you could tell me, in confidence if you wish, where a report like this can
be retrieved. I would like to be able to find similar reports in other cases.

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing
document to which this certificate is
attached was delivered to the attorneys
of record of plaintiff, defendant, on
the 2nd day of April 1999.
UNITED STATES ATTORNEY[Signature]

Judge Bryan

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

UNITED STATES OF AMERICA,

Plaintiff,

v.

CARL E. JOHNSON,

Defendant.

________________________________

)
)
)
)
)
)
)
)
)
)

NO. CR98-5393RJB

GOVERNMENT'S TRIAL
MEMORANDUM

COMES NOW THE UNITED STATES OF AMERICA, by and through Katrina C. Pflaumer,
United States Attorney for the Western District of Washington, and Floyd
Short and Robb London, Assistants United States Attorney for said district,
and submits the following Trial Brief in this matter. Trial is presently
scheduled to begin on April 12, 1999, at 9:30 a.m.

I. STATUS OF THE CASE

The defendant was charged by Complaint on August 5, 1998, with a single,
omnibus count of threatening federal judges and officers via the Internet
in retaliation for the performance of their official duties, under Title
18, United States Code, Section 155. Multiple threats were charged under
a single count. He was arrested on the Complaint in Tucson, Arizona, on August
18, 1998. At his initial appearance in that district, a competency evaluation
was ordered by the Magistrate Court in Tucson, and the defendant was ultimately
found competent to stand trial. In the interim, the Grand Jury in this district
returned a one-count indictment identical to the charge in the complaint.
The Government advised defense
counsel that in the event this matter went to trial, the Government would
present a Superseding Indictment to the Grand Jury, breaking out the various
threats into individual, separate counts. On March 4, 1999, the Grand Jury
returned a Superseding
Indictment charging the defendant with five separate counts under Title
18, United States Code, Sections 115 (Retaliatory Threats Against Judicial
Officer), 1503 (Obstruction of Justice), and 875(c) (Threatening Communications
in Interstate or Foreign Commerce).

At trial, the United States anticipates calling approximately 25 witnesses,
and estimates that the trial will last three to four days. Defendant is
represented by Gene Grantham, although the court has stated that it will
consider allowing the defendant to examine some witnesses himself because
of his claimed expertise in the realm of computer technology.

II. FACTS

The Government expects to prove the following facts at trial:

A. The Context of Violence: The Jim Bell Search Warrant, the Noxious Bomb
Attack on the IRS, Sarin Gas, and the Assassination Politics Essay

On March 28, 1997, Inspector Jeffrey Gordon of the Internal Revenue Service
("IRS") applied for a search warrant for the residence of
James Bell. Bell was the target
of an IRS investigation regarding the use of false social security numbers
as well as threats and obstruction of justice relating to his involvement
in "common law" courts that targeted and threatened IRS employees. United
States Magistrate Judge J. Kelley Arnold signed the search warrant, and the
IRS executed it on April 1, 1997. The search of Bell's residence uncovered,
among other things, computer files containing a treatise authored by Bell
that he called "Assassination Politics,"
which reflected Bell's hatred of government officials. The treatise described
an online Internet scheme whereby people could place anonymous, electronic
cash (or "eCa$h") "bets" predicting the exact dates and times of the deaths
of particular public officials. The winner -- who would know the correct
date and time of an official's death by virtue of being the assassin himself
-- would receive all the "bets." Thus, people desiring the death of a government
official could make anonymous contributions to establish a bounty that could
be claimed by an anonymous assassin.

The IRS search of Bell's computer also uncovered several March 1997 e-mail
messages between Bell and the defendant, who used the name "Toto" and the
Internet e-mail address "toto@sk.sympatico.ca." The e-mail exchanges include
the defendant's requests for additional information from Bell about Assassination
Politics. Sympatico is an Internet Service Provider ("ISP'') located in
Saskatchewan. Defendant used an account with Sympatico for his connection
to the Internet in order to send and receive e-mail and in order to host
a World Wide Web site under the name "Carljohn" (the "Carljohn website").

During the search of Bell's residence, law enforcement officers were particularly
disturbed to discover a variety of hazardous chemicals, including ingredients
for a variation of the deadly nerve agent known as Sarin gas, a compound
that received world wide attention several years ago when members of a Japanese
cult released it into the Tokyo subway system, killing and injuring scores
of people.

B. Defendant's Support of Jim Bell; The Cypherpunks and PGP Encryption

On May 16, 1997, Bell was arrested by IRS inspectors.1 The arrest
attracted considerable press attention in Washington and Oregon, especially
because of the possibility that Bell had been experimenting with nerve agents
in a populated urban area. The arrest was also the subject of e-mail discussion
among some of Bell's fellow Cypherpunks on the Internet. Five days later,
the defendant posted an e-mail message discussing Bell to a mailing list
comprised of
"Cypherpunks," a group
of as many as five hundred Internet users interested in encryption technology
and the government's regulation of such technology. There are several
interconnected Cypherpunks mailing lists, each of which was structured so
that the defendant, or anyone else, could send an e-mail message to the list,
and the message would then be forwarded to every member of the lists. It
is extremely important to bear in mind that the Cypherpunks lists are all
public lists -- that is, any e-mail that is sent to (or "posted") to these
lists is publicly available on the Internet. One need not even be a member
of the group to be able to read e-mails posted to these lists. Thus, any
death threat that is posted to one of these lists is, by definition, publicly
communicated. Both Bell and the defendant were members of the list, which
is open to anyone and even includes as members various persons involved in
law enforcement. Cypherpunks e-mail messages are archived and available to
anyone on the World Wide Web and are often posted to Usenet as well.2

_________________

1 Bell was prosecuted in the Western District of Washington, Tacoma
Division, where he ultimately pled guilty to several charges, notably Interfering
With or Obstructing the Due Administration of the Internal Revenue Laws,
a violation of Title 26, United States Code, Section 7212. The case was
United States v. James Dalton Bell, CR97-5270FDB. As part of the plea,
Bell admitted not only to synthesizing the chemicals that could be mixed
to produce Sarin, but also to setting off a noxious bomb at a building in
Vancouver, Washington, that housed IRS offices.

The defendant in this case is charged with endeavoring to obstruct
justice in the Bell matter. Accordingly, the Government refers the
court to the official clerk's file in that case for the purposes of augmenting
the factual record on which we rely in support of our response to this motion.

2 Usenet is an Internet service that is similar to an electronic bulletin
board. It consists of various "newsgroups," which are organized and named
by topic, and are readily available over the Internet. It allows users to
both post and read messages on the particular topic.

On May 21, 1997, the defendant posted an e-mail to the Cypherpunks list,
stating: "I cannot in good conscious (sic) allow Jim Bell's persecution ...
to pass by without taking personal action to support him."

The May 21 message was sent through an anonymous remailer, a device which
allows a user to send an e-mail without revealing the user's identity or
the source of the message. Although the May 21 message did not identify the
defendant by name or Internet account as the sender, the message contained
a digital signature identifying the defendant as the author of the message.
The defendant created this digital signature with an encryption software
program called PGP (an acronym of "Pretty Good Privacy"). PGP allows the
user to "sign" or authenticate a message in order to prove that he, and only
he, is the one who authored it and that nobody has tampered with the message.
PGP also allows the user to encrypt (i.e., put into code) an e-mail
message in order to hide it from everyone other than the designated recipient.
PGP accomplishes both of these functions, authentication and encryption,
through a system of private and public keys.

Because PGP plays an important role in this case, it bears further explanation
here. Every person who uses PGP has one or more keys, and each PGP key consists
of two complementary parts: a public key, which the user distributes widely
for others to use, and a private key, which the user keeps secret to himself
and protects with a password or passphrase. In order to authenticate a message,
the sender uses his private key to place a digital signature at the end of
the message. The recipient then uses the public key of the sender to verify
that the sender did in fact sign it. In order to send an encrypted message,
the sender can encode the message by using the public key of the recipient.
The recipient then uses his private key to decode the message. PGP encryption
actually provides much more than "pretty good" privacy; it employs very strong
encryption technology. The May 21, 1997 e-mail message authored by the defendant
is authenticated by a PGP secret key (named "Toto < toto@sk.sympatico.ca"),
copies of which were later found on the defendant's laptop computer and on
diskettes in his possession at the time of his arrest.

Only three days later, on May 24, 1997, the defendant installed an Assassination
Politics "bot" of his own on the Carljohn website. He called it "Dead Lucky."
A "bot" is essentially a computer program, and this bot implemented Jim Bell's
Assassination Politics. Specifically, the "Dead Lucky" bot enabled a person
to enter the name and location of a "Future Deceased," along with a predicted
date and time of death. The bottom of the page stated, "In the event of a
tie, the winner shall be decided on the basis of the ballistics and/or coroner's
report." The bot was configured to notify the defendant by e-mail whenever
anyone submitted names of victims and/or predicted dates and times of deaths.
An electronic copy of the "Dead Lucky" bot was later found on the defendant's
home computer. On June 23, 1997, the defendant posted an e-mail message to
the Cypherpunks list that contained the specific threat soliciting the death
of United States Magistrate Judge J. Kelley Arnold -- the threat charged
in Counts One and Two of the Indictment. The message, entitled "AP Bot Results,"
stated in relevant part:

"Dead Lucky" is an Assassination Politics Bot operated in response to
the illegal and unconstitutional imprisonment of an American citizen in
retaliation for exercising his right of free speech. It is the view of the
operator's [sic] of this AP Bot that since it was the illegal and
unconstitutional actions of Federal employees which was [sic] responsible
for the implementation of this AP Bot and several others, that they should
accordingly be subjected to imprisonment without bail for endangering the
lives of others, incLuding several Cypherpunks.

Leading eCa$h candidates for dying at an opportune time to make some perennial
loser "Dead Lucky" are:

This e-mail message -- which targeted not only Judge Arnold but also the
IRS officials identified in the Jim Bell search warrant papers -- was sent
via an anonymous remailer called the 'lucifer Anonymous Remailer.' Although
the message therefore did not identify the defendant by name or by his Internet
account, other circumstantial evidence proves his identity, including his
own claim of authorship made in a December 9, 1997 e-mail containing still
another threat, this one to the Ninth Circuit judges. His authorship of the
June 23 threat is also established by his announcement of the bot to the
Cypherpunks, and his admissions about it in other correspondence.

Thus, the defendant had now made a specific threat against specific, named
individuals, appearing to solicit the deaths of those individuals for specific
cash sums. The context of this threat must not be forgotten: it was an obvious
attempt to intimidate or retaliate against the judge who authorized, and
the IRS agents who executed, the search warrant for the residence of the
defendant's fellow Cypherpunk, James Bell, the man who had first proposed
the 'Assassination Politics' scheme. And Mr. Bell, let it not be forgotten,
had not only carried out at least one attack against an IRS office, but had
possessed the makings of a lethal nerve agent in his garage. [The defendant
was aware that Mr. Bell had done these things. On December 14, 1997, he posted
an e-mail to the Cypherpunks list in which he discussed and defended Bell's
attack on the IRS building. [Inserted by hand: "a stink bomb."]
And, a copy of a U.S. News &
World Report article discussing Mr. Bell's experiments with Sarin
gas was found on the defendant's computer after it was seized by Canadian
Customs officers.] In evaluating the nature of the threats made by the defendant
in this case, one must always keep in mind the nature and deeds of the man
whose cause the defendant was now championing -- a man so angry at the Government
that he was experimenting with the precursor chemicals of a deadly nerve
agent.

During the month of September 1997, the defendant issued various e-mail messages
through the Sympatico account in which he used phony sender's e-mail names
and addresses, so that the messages appeared to come from "Dead Lucky
<dl@dev.null>," "HugeCajones Remailer <hc@dev.null> ," and "A.B.
Terroroist at@dev.null"[sic]. The "Dead Lucky" e-mail included an excerpt
from the Dead Lucky web page and listed the Internet address of the bot.
Other e-mail messages -- which were sent to Microsoft Corporation's Chairman
Bill Gates and various politicians, including United States Senators Diane
Feinstein and Edward Kennedy and Washington State legislator Karen Schmidt
-- included titles like "! ! ! DEATH THREAT ! ! !" and contained threatening
language. Eventually, in November 1997, Sympatico asked the defendant to
stop using the forged e-mail return addresses of "dev.null" because of problems
it was causing for Sympatico's e-mail servers (computers). Nevertheless,
the defendant continued to send e-mail with the "dev.null" forged
headers.3

___________________

3 An e-mail header is the information that appears at the top of an
e-mail message and describes the source and destination of the message and
the path through the Internet it took between those points. The return address
of an e-mail can be forged by the sender, as it was in this case.

D. The Bernstein Case and the Specific Threat Against Judge Fletcher

On December 8, 1997, an issue of strong interest to the Cypherpunks came
to the fore, when the Ninth Circuit Court of Appeals heard oral argument
in an appeal known as the Bernstein case.4 The case involved
a challenge to the Government's regulations prohibiting the export of encryption
technology. The appeal was argued before Judges Betty Fletcher, Thomas Nelson,
and Myron Bright. The day after the argument, the defendant posted another
threatening e-mail to the Cypherpunks mailing list, via his Sympatico account,
using the name "TruthMailer <hc@dev.null>." Defendant also encrypted
and signed the message using PGP, but he did not encrypt the subject line
of the message, which read: "Encrypted InterNet DEATH THREAT! ! ! / ATTN:
Ninth District Court Judges / PASSWORD: sog.["] Although the message
was encrypted, therefore, defendant included the password to decrypt it --
"sog" -- right in the subject line.

The decrypted message contained a long, profane discussion of the
Bernstein case, including direct quotations from the oral argument.
In its penultimate paragraphs, the e-mail stated, in relevant part:

I will share the same 'DEATH THREAT!!!' with Judges Fletcher, Nelson and
Bright that I have shared with the President and a host of Congressional
and Senatorial representatives:

"You can fuck some of the people all of the time, and all of the people
some of the time, but you are going to end up in a body bag or a pinebox
before you manage to fuck all of the people all of the time.

Am *I* going to whack you out? Maybe...

The message purported to be written by John Gilmore (who denies authoring
it), but also included "hints" as to the real author's identity. Among the
hints were references to the Assassination Politics Bot and to the defendant's
Canadian citizenship:

I can also be tied into Jim Bell's Worldwide Conspiracy to assassinate
government authorities, through my implementation of an Assassination Bot.

(I am willing to 'rat out' Jim for two bottles of Scotch. If he is willing
to rat me out for less, then I guess it's just my hard luck, eh? <--that's
another hint!)

The import of the threat, in its full context, was clear: The Ninth Circuit
panel should decide the Bernstein appeal in favor of the defendant's
position on the issue raised in that case or face the possibility of ending
up "in a body bag or a pine box." The defendant also directed some of his
comments specifically at law enforcement, daring them to come get him for
making the threat. The message ended with a PGP digital signature generated
by one of the defendant's PGP secret keys, called "Son of Gomez." That secret
key was later found on the defendant's laptop computer by Canadian law
enforcement and on a diskette that he had at the time of his arrest. "Son
of Gomez" is also an alias that the defendant has used.

Three days after the defendant's threat to Judge Fletcher and the other Ninth
Circuit Judges, Jim Bell was sentenced by U.S. District Judge Franklin Burgess.
In the ensuing days the defendant issued several messages regarding Bell
and his own AP-Bot. Among them was a December 13, 1997 e-mail message in
which the defendant directed someone named Eric Cordian to his AP Bot in
response to the following comment from Cordian: "Where do I contribute my
dollar to the 'Bet a Buck Judge Burgess Lives to See 1998' fund?" Two additional
e-mails from the defendant -- using the alias "Human Gus-Peter
<hg-p@dev.null>" -- to the Cypherpunks list ranted about the Bell case
and discussed the resulting implementation of AP Bots.

E. The Threat to Assassinate Bill Gates

In 1998, the defendant turned his attention to a new target,
Microsoft Chairman William Gates. He sent a number of e-mail messages to
Gates that contained threatening language, including a statement about training
a gun sight on Gates. In fact, in a March 22, 1998 e-mail to the Cypherpunks,
the defendant acknowledged, "I send weekly death threats to Bill Gates...."
The threatening message that is charged in Count Five of the Indictment was
sent by the defendant on March 20, 1998, directly to Bill Gates, with a copy
to Blanc Weber, a Microsoft employee and fellow Cypherpunk. The subject line
of the message stated: "I'm still planning your assassination, my support
of you is only to shorten the line ahead of me." (The defendant's reference
to "support" of Gates is explained by an attached e-mail in which the defendant
praised Microsoft's creation of software for the masses.) Sympatico and Sasktel
telephone records confirm that the defendant sent this e-mail message from
his residence in Bienfait, Saskatchewan. The March 20 message also stated,
"Blanc, Jeff, are you in position? Can you get off a clean shot? (Not that
I'm a troublemaker...)." Blanc Weber subsequently sent a message to the defendant
asking him to leave her out of such messages.

To Microsoft's security officers, the threat was more alarming than many,
mainly because it suggested the possibility of several people acting together,
not just a lone threatener. They had to be concerned about the possibility
there were indeed individuals ("Blanc" and "Jeff") who, by virtue of working
in proximity to Mr. Gates, might readily be able to "get off a clean shot."
The security personnel did not know who was making the threat, and they were
not immediately familiar with Ms. Weber. But the prospect that someone hostile
to Mr. Gates might be right there, "in position" on the Microsoft campus,
was understandably disconcerting.

F. The RCMP "Hate Page" and the Searches of the Defendant's Residence
and Computers

Soon thereafter, on March 25, 1998, the defendant focused
his attention on the Royal Canadian Mounted Police (RCMP), installing "The
Official Royal Canadian Mounted Police HATE Page" on the Carljohn website.
Sympatico records confirm that the defendant uploaded the hate page from
his residence on that date. On April 2, 1997 [sic], Sympatico shut
down the defendant's website. On April 7, the RCMP conducted a search of
the defendant's residence in Bienfait and his home computer located there.
The RCMP found numerous documents and computer files that tie the defendant
to the AP Bot and e-mail messages described above. Among the computer files
were the following: a copy of Jim Bell's "Assassination Politics;" a file
with text copied from the Jim Bell search warrant affidavit; the "Dead Lucky"
Bot itself; the two e-mail messages mentioned above that the defendant sent
to the Cypherpunks under the name "Human Gus-Peter;" two e-mail messages
from Sympatico asking the defendant to stop forging his e-mail return address
as "@dev.null;" an e-mail message that the defendant sent to Bill Gates via
an anonymous remailer called "WinSock;" and an e-mail message that the defendant
sent to an anonymous remailer called "replay.com" discussing Jim Bell,
encryption, and "digital revolutionaries."

Physical items found in the RCMP's search include various handwritten notes;
printouts regarding the use of the "lucifer," "WinSock," and other anonymous
remailers; a printout of an e-mail from a remailer that discusses killing
and threatening the lives of politicians; a "Telephone Bomb Threat Checklist;"
and printouts of the results of an Internet search for the e-mail address
of Washington legislator Karen Schmidt and the subsequent e-mail that the
defendant sent to her in which he used the return address of "A.B. Terroroist
<at@dev.null>."

On the next day, April 8, 1998, a Canadian Customs officer seized the defendant's
laptop computer as the defendant was entering Canada from Montana. A subsequent
search of that computer uncovered an outgoing copy of the March 20, 1998
Bill Gates threat. Also on the laptop computer was an April 5, 1998 e-mail
to the Cypherpunks about the Government's encryption export policy -- the
issue being litigated in the Bernstein case. The laptop also held
PGP keyrings containing the "Son of Gomez" secret key used by the defendant
to digitally sign the December 9, 1997 Ninth Circuit Judges threat. The defendant
also had PGP secret keys for other aliases he had used, including C.J. Parker,
Toto, TruthMailer, and TruthMonger. Finally, the laptop contained several
e-mails to Bill Gates, Blanc Weber, the "replay.com" anonymous remailer,
and the Cypherpunks. In these e-mail messages, the defendant used the names
"Toto" and "TruthMonger."

G. The Estevan Bomb, Defendant's Flight to Arizona, and the Secret Service
Interview

In early June of 1998 -- two months after Canadian Customs
seized the defendant's laptop computer at the border -- the defendant put
a small bomb or incendiary device in the basement of the courthouse in Estevan,
Saskatchewan, and then departed Canada for the United States. He then sent
a series of e-mail messages acknowledging the bomb to the Cypherpunks list
and to Declan McCullagh, a fellow Cypherpunk and journalist who was then
employed by Time Inc. In the United States, the defendant continued to post
messages to the Cypherpunks list, while he lived with a friend named Linda
Reed in Tucson, Arizona.

Following the bomb incident, the United States Secret Service decided to
contact the defendant, who had included references to President Clinton in
some of his threatening e-mail (including the December 9, 1997 threat to
the Ninth Circuit judges). Two Secret Service Special Agents interviewed
the defendant on July 27, 1998, at the home of Linda Reed. During the interview,
after being informed of and waiving his Miranda rights, the defendant
was shown the threatening portion of the December 9, 1997 e-mail regarding
Judge Fletcher and the two other members of the Bernstein panel. The
defendant responded, "It looks like my stuff." He then claimed that he was
talking in "virtual" terms rather than "meatspace" (i.e., physical
world) terms, and denied any intention of harming the President or other
Government officials. He also admitted to using the aliases "Toto" and
"TruthMonger," and to using Linda Reed's Internet account (an account through
which he had sent a series of e-mail messages in July of 1998 concerning
Jim Bell and containing language threatening toward U.S. and Canadian government
officials). During the interview, the defendant gave the Secret Service agents
a false Social Security number.

H. Still More Violence: The Defendant's Arrest; Diskette Bombs and Jail
Correspondence

On August 18, 1998, after the Secret Service interview
and after the defendant had been identified as the author of the December
9, 1997 threat and the prior threat to Magistrate Judge Arnold, he was arrested
by IRS Inspectors Jeffrey Gordon and Bruce Mason while he was sitting in
his Mazda pickup truck in Tucson, Arizona. Incident to the arrest, the Inspectors
searched him and his truck. In his wallet, they found a photograph of him
with the name "C.J. Parker" and several identification documents in his real
name, including Arizona and Saskatchewan driver's licenses, a Certificate
of Canadian Citizenship, and the Mazda pickup truck registration. In the
truck, the Inspectors found two floppy diskettes, one of which was wrapped
in a document with the title "Diskette Bombs" that described various chemical
compounds for creating flares. The diskettes themselves contained copies
of the defendant's PGP keyrings (again including the "Son of Gomez" secret
key) and various writings. Among the writings was a document called "The
Revolution is Now" that contained a number of graphics files linked to it
depicting grotesque images of severed heads, internal organs, amputees, apparent
crime scenes, and bombs. During the booking process at the jail in Tucson,
Arizona, the defendant assaulted Inspector Mason, verbally abused him, and
had to be physically restrained after considerable effort.

While the defendant was in custody in Florence, Arizona, he mailed two
handwritten letters to Declan McCullagh, the Cypherpunks list member who
was also a reporter for a Time, Inc. Internet publication. In the first letter,
postmarked September 8, 1998, the defendant admitted to assaulting the Treasury
agent, acknowledged his connection to the "Dead Lucky AP-Bot" by claiming
it had received three votes, and again acknowledged his aliases of "Toto"
and "TruthMonger." In the second letter, postmarked September 11, 1998, the
defendant penned an angry rant to U.S. Magistrate Judge Nancy Fiora, who
had ordered his competency evaluation. Both letters have the defendant's
fingerprints on them.

III. OFFENSES CHARGED AND APPLICABLE STATUTES

1. The Superseding Indictment

In the Superseding Indictment, the Grand Jury has charged that:

COUNT ONE

(Threat to Judicial Officer)

On or about June 23, 1997, within the Western District of Washington and
elsewhere, CARL EDWARD JOHNSON did threaten to kill J. Kelley Arnold, a United
States Magistrate Judge, with intent to impede, intimidate, interfere with,
and retaliate against Judge Arnold while he was engaged in and on account
of the performance of his official duties.

All in violation of Title 18, United States Code, Section 115.

COUNT TWO

(Threatening Communications in Interstate or Foreign Commerce)

On or about June 23, 1997, CARL EDWARD JOHNSON knowingly and intentionally
did transmit in foreign commerce, from Canada to the United States, an electronic
mail communication containing a threat to injure the person of United States
Magistrate Judge J. Kelley Arnold, which threat was received electronically
at Seattle and elsewhere within the Western District of Washington.

All in violation of Title 18, United States Code, Section 875(c).

COUNT THREE

(Threat to Judicial Officer)

On or about December 9, 1997, within the Western District of Washington and
elsewhere, CARL EDWARD JOHNSON did threaten to kill Betty Binns Fletcher,
a United States Ninth Circuit Judge, with intent to impede, intimidate, interfere
with, and retaliate against Judge Fletcher while she was engaged in and on
account of the performance of her official duties.

All in violation of Title 18. United States Code. Section 115.

COUNT FOUR

(Threatening Communications in Interstate or Foreign Commerce)

On or about December 9, 1997, CARL EDWARD JOHNSON knowingly and intentionally
did transmit in foreign commerce, from Canada to the United States, an electronic
mail communication containing a threat to injure the person of United States
Ninth Circuit Judge Betty Binns Fletcher, which threat was received
electronically at Seattle and elsewhere within the Western District of
Washington.

All in violation of Title 18, United States Code, Section 875(c).

COUNT FIVE

(Threatening Communications in Interstate or Foreign Commerce)

On or about March 20, 1998, CARL EDWARD JOHNSON knowingly and intentionally
did transmit in foreign commerce, from Canada to the United States, an electronic
mail communication containing a threat to injure the person of William Gates
m, which threat was received electronically at Redmond and elsewhere within
the Western District of Washington.

All in violation of Title 18 United States Code, Section 875(c).

2. The Charging Statutes

(i) Counts 1 and 3: title 18, United States Code, Section 1503 (Obstruction
of Justice by Threat of Death Against Judicial Officer)

The defendant is charged in Counts 1 and 3 with Obstruction of Justice by
making death threats against a judicial officer, namely, J. Kelley Arnold
in Count 1 and Betty Binns Fletcher in Count 3. The statute states, in relevant
part:

§ 1503. Influencing or injuring officer . . .

(a) Whoever corruptly, or by threats of force, or by any threatening letter
or communication, endeavors to influence, intimidate, or impede any . . .
officer in or of any court of the United States . . . in the discharge of
his duty . . . or corruptly or by threats of force, or by any threatening
letter or communication . . .endeavors to influence, obstruct, or impede,
the due administration of justice, shall be punished . . .

Venue in an obstruction case charged under § 1503 lies in "the district
in which the official proceeding (whether or not pending or about to be
instituted) was intended to be affected or in the district in which the conduct
constituting the alleged offenses occurred.["] 18 U.S.C. § 1512(h).

Federal judges and magistrates are "officers in or of" the federal courts
for purposes of the Obstruction statute. United States v. Margoles,
294 F.2d 371 (7th Cir, 1961); United States v. McLeod, 119
F. 416 (N.D. Ala. 1902).

The word "corruptly" as used in the statute means that the act must be done
with the purpose of obstructing justice. United States v. Rasheed, 663
F.2d 843 (9th Cir. 1981).

"Endeavor" means to make an effort to do or accomplish the purpose that the
statute was enacted to prevent. United States v. Laurins, 857 F.2d
529, 537 (9th Cir. 1988); Rasheed, supra.

The Government must show that the defendant had knowledge that a federal
proceeding was pending. United States v. Washington Water Power Co.,
793 F.2d 1079, 1084 (9th Cir. 1986).

Actual obstruction, or success of the endeavor, is not an element of proof,
Rasheed, supra; Roberts v. United States, 239 F.2d
467 (9th Cir. 1956), but a specific intent to impede the administration of
justice is an element. United States v. Ryan, 455 F.2d 728 (9th
Cir. 1971).

The Government must prove that there was a judicial proceeding underway that
the defendant's actions were intended to obstruct. United States v.
Mullins, 22 F.3d 1365 (6th Cir. 1994). In that regard, however, a judge
is considered to be still engaged in the discharge of his duties even after
he has recused or withdrawn from a case, where he is nonetheless still involved
in adjudicating other cases, and the danger of the defendant's actions is
in their potential to intimidate the judge and dissuade him from the zealous
execution of his ongoing official duties. United States v. Fulbright,
105 F.3d 443 (9th Cir. 1997), cert. denied, 117 S.Ct. 1836.

The defendant is charged in Count 2 with making a retaliatory threat
against Judge Arnold on account of the performance of his official duties,
in violation 18 U.S.C. 115(a)(1)(B) and (B)(4). The relevant part of the
statutory scheme punishes whomever:

threatens to assault . . . or murder . . . a United States judge . . . with
intent to retaliate against such . . . judge . . . on account of the performance
of official duties . . .

Section 115(c)(3) of Title 18 defines "United States Judge" as "any judicial
officer of the United States, and includes . . . a United States magistrate
. . ."

Thus, the Government must prove that 1) the defendant, 2) threatened to assault
or kill, 3) a judicial officer of the United States, 4) with intent to retaliate
against that officer, 5) while the officer was engaged in, or on account
of the performance of, his official duties. United States v.
Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990).

In determining whether the threats are 'true threats,' an objective standard
is used -- namely, whether a reasonable person would foresee that the statement
would be interpreted by those to whom the maker communicated the statement
as a serious expression of intent to harm or assault. Orozco-Santillan,
supra. In making that determination, the alleged threats
should be considered in light of their entire factual context, including
surrounding events and reactions of listeners. Id. And, evidence
of the victim's reaction or response is relevant to show that the threat
could reasonably be perceived [a]s containing a 'true threat.'
United States v. Davis, 876 F.2d 71 (9th Cir. 1989).

The only intent requirement is that the defendant intentionally or knowingly
communicated a threat, not that he intended or had the ability to carry out
the threat. Orozco-Santillan, supra.

(iii) Counts 4 and 5: Threatening Communications in Interstate or Foreign
Commerce, Title 18. United States Code. Section 875(c)

The defendant is charged in the last two counts of the Superseding
Indictment with making and transmitting two threatening communications in
foreign commerce, in violation of 18 U.S.C. 875(c), one against Betty Fletcher,
and one against Bill Gates. The charging statute punishes whomever:

Thus, the elements of the charge are: (1) an intentional interstate or foreign
transmission of a communication, (2) threatening to injure a person, (3)
with the specific intent to threaten. United States v. Twine, 853
F.2d 676 (9th Cir. 1987). However, the Government is not required to prove
that the defendant had the intent or ability to carry out the threat. Id.
Nor is the Government required to prove that the defendant had the specific
intent to injure, or that the threat ever reached the person who was threatened.
United States v. Holder, 302 F.Supp. 296 (D.Montana 1969), aff'd
& adopted, 427 F.2d 715 (9th Cir. 1970). The threat need not have
been of such a nature as to have induced fear in the mind of the person
threatened. Id. It is enough to show that the threat was of such
a nature as reasonably to have induced fear. Ibid ("The test is
whether the communication 'in its context' would 'have a reasonable tendency
to create apprehension that its originator will act according to its tenor.'")
(citations omitted).

Even a vague threat is sufficient to sustain a conviction under this statute.
Roy v. United States, 416 F.2d 874 (9th Cir. 1969).

The offenses charged under the Threatening Communications statute contain
the element that the communications must have been transmitted in interstate
or foreign commerce. [In that regard, the evidence will be that the defendant
transmitted the e-mails charged under that statute through an Internet service
provider in Canada, and that they were relayed from there through
telecommunications lines to the United States and elsewhere, where they could
be accessed in Washington or any other state in the union. The Internet crosses
interstate and foreign boundaries.]

IV. EVIDENTIARY AND LEGAL ISSUES

1. Admissions by Defendant.

Defendant's statements to law enforcement and in e-mails and other correspondence
are admissible, non-hearsay admissions of a party-opponent when offered into
evidence by the United States. Fed. R. Evid. 801(d)(2)(A).

2. Business Records.

Business records of the Canadian Internet service provider Sympatico and
the Canadian telecommunications company SaskTel will be offered by the United
States pursuant to Rule 803(6), which provides, in pertinent part, the following
as an exception to the hearsay rule:

A . . . record . . . made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that business activity
to make the memorandum, report, or data compilation, all as shown by the
testimony of the custodian or other qualified witness, unless the source
of information or the method or circumstances of preparation indicate lack
of trustworthiness . . .

The witness who is introducing the records is not required to have first-hand
knowledge of the preparation of the records. United States v. Bland,
961 F.2d 123, 127 (9th Cir.), cert denied, 506 U.S. 858 (1992).
Furthermore, the Government does not have to prove the records are complete
and accurate. United States v. Hudson, 479 F.2d 251, 254 (9th Cir.
1972) (fullness and completeness goes to weight, not admissibility of evidence),
cert. denied, 414 U.S. 1012 (1973). Finally, under Fed. R. Evid. 1001(4)
and 1003, photocopies may be used to the same extent as originals, unless
a genuine question as to the authenticity of the original is raised. United
States v. Morgan, 555 F.2d 238, 243 (9th Cir. 1977). [Variable format
of underlines and italics in original.]

3. Certified Public Records.

The United States will offer in evidence a certified copies
of relevant documents from the Bell case, such as the search warrant
and application that prompted the death threat against Judge Arnold and the
IRS officers. We are also offering a certified copy of the docket in the
Bernstein case, the Ninth Circuit matter relating to the export
of encryption technology. Judge Fletcher's handling of that case is alleged
by the Government to provide part of the context for the defendant's threat
against her. We plan on offering two Social Security Administration
certifications showing the defendant's true Social Security number and linking
him to the alias "C.J. Parker," and showing that the Social Security number
he gave to the Secret Service was an invalid number. These certified records
are admissible as certified public records under Fed. R. Evid. 803(8). As
records of public agencies setting forth activities of those agencies, they
are self-authenticating under Fed. R. Evid. 902(4).

4. Evidence of "Other Acts" Committed by Defendant: Admissible as Direct
Proof of the Crime Charged or as Evidence Permitted Under Rule 404(b)

Based on his pretrial
motion to dismiss the Superseding Indictment on First Amendment grounds,
the Government anticipates that the defendant will argue that the threats
are protected speech and do not rise to the level of 'true threats.' However,
as we argued in our brief in response to his dismissal motion, the First
Amendment does not protect a speaker who intentionally threatens another
with death or serious bodily injury in order to alter a lawful course of
action by means of intimidation or fear. "True threats" are those which are
intended to cause fear and intimidation regardless of whether there is any
actual intent to carry out the threat. Thus, criminal culpability may properly
be based on speech that amounts to a true threat.

When a statement contains explicitly threatening language, against specific,
named targets, the analysis will be centered primarily on the question of
whether the threat is serious or merely a form of exaggerated political rhetoric.
Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L.Ed.2d
664 (1969). In making this inquiry, one must consider the surrounding factual
circumstances to determine whether the challenged statement is truly a threat
in context and, thus, undeserving of First Amendment protection. In the Ninth
Circuit, an "objective" test is applied when determining whether a threat
rises to the level of unprotected speech. Thus, a statement should be considered
a true threat where, considering all relevant factual circumstances, a reasonable
person would foresee that a recipient would interpret the statement as
communicating a serious expression of an intent to inflict or cause serious
harm to the target.

In the Ninth Circuit the 'true threat' question is for the jury to decide,
especially where, here, the facts surrounding the threat -- such as motive
and intent -- are in dispute. The law of the circuit is that the question
of whether a threatening communication is protected by the First Amendment
or is instead an unprotected 'true threat' is one for the jury. See:
Melugin v. Hames, 38 F.3d 1478 (9th Cir. 1994) (issue of whether
a criminal defendant has made a 'true threat' as opposed to a statement protected
by the First Amendment is question of fact for jury, not question of law
for court); United States v. Merrill, 746 F.2d 458, 462 (9th Cir.
1984) (whether expression is true threat is for trier of fact in all
circumstances), cert. denied, 469 U.S. 1165 (1985); United States
v. Gilbert, 813 F.2d 1523, 1530 (9th cir. 1987) ([I]t is a jury question
whether actions and communications are clearly outside the ambit of first
amendment protection"); United States v. Pennell, 144 F. SUPP. 317
(N.D.Cal. 1956) (whether intimidating letter constituted true threat was
a question of fact, not to be determined on motion to dismiss indictment).
Seealso: United States v. Carrier, 672 F.2d 300,
304 (2d. Cir.) (defendant's intention in uttering words and the circumstances
surrounding their use are issues of fact for the jury), cert. denied,
457 U.S. 1139 (1982); United States v. Khorrami, 895 F.2d 1186,
1192 (7th Cir. 1990) (accord).

The Ninth Circuit has adopted an 'objective' test to determine whether an
alleged threat is a 'true threat' for purposes of First Amendment analysis.
In the Ninth Circuit, to distinguish a 'true threat' from otherwise protected
speech under the First Amendment, one must ask:

"Whether a reasonable person would foresee that the statement would
be interpreted by those to whom the maker communicates the statement as a
serious expression of intent to harm or assault." United States v.
Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990) Furthermore, " [a]lleged
threats should be considered in light of their entire factual context, including
the surrounding events and the reaction of the listeners." Id.

5 Thissummary of the Ninth
Circuit's 'objective' test of a 'true threat' was recently stated by the
American Civil Liberties Union Foundation of Oregon, in its Brief Amicus
Curiae in Planned Parenthood of the Columbia/Willamette, et al:
v. American Coalition of Life Activists, et al., C95-1671-JO (U.S.D.C.
Oregon). There, the ACLU took the view that under the Ninth Circuit's definition
of a 'true threat' -- and even under a narrower, more subjective definition
favored by the ACLU -- "WANTED!' posters placed on the Internet by anti-abortion
activists, targeting abortion providers, were arguably not protected by the
First Amendment, and rose to the level of true threats. In that case, the
ACLU argued -- and the court ultimately agreed -- that the threats could
rise to the level of 'true threats' even though the 'WANTED!' posters did
not explicitly threaten harm against the abortion providers. the threats,
though veiled, were nonetheless 'true.'

There is no requirement that the Government show that the defendant intended
to carry out the threat. United States v. Twine, 853 F.2d 676 (9th
Cir 1988). Moreover, the objective test employed by the Ninth Circuit does
not expressly call for proof that a defendant intended to threaten. "Instead,
some aspect of generalized intent appears to be included in the requirement
that a hypothetical, reasonable person who makes a statement would have foreseen
that the statement would be interpreted as a serious expression of an intent
to harm or assault." See, Brief Amicus Curiae of ACLU Foundation
of Oregon, in Planned Parenthood of the Columbia Willamette, et al. v. American
Coalition of Life Activists, et al., C95-1671-JO (U.S.D.C. Oregon). Thus,
the Ninth Circuit's test is an "objective" one in the sense that it focuses
mainly on a hypothetical reasonable speaker, but also, to some extent, on
a reasonable listener (by asking what a reasonable speaker would have foreseen
as the interpretation of the statement by the listener).6Id.

_______________

6 The Fifth Circuit seems to follow a similar, 'objective' test. There,
in order to be a true threat a statement "must have a reasonable tendency
to create apprehension that its originator will act according to its tenor."
United States v. Myers, 105 F.3d 76, 79, cert.
denied, 117 S. CT.. 1709 (l997). Similarly, "A 'threat' is a
'declaration of an intention or determination to inflict . . . injury . .
." United States v. Howell, 719 F.2d 1258, 1260, n.l.

Thus, the question before the jury will be whether, under the "objective
test" that is applicable in this Circuit (and which will be given to the
jury in an appropriate instruction), after considering all relevant surrounding
circumstances, a reasonable person would foresee that the threatening
communications would be interpreted by a recipient as communicating a serious
expression of an intent to inflict or cause serious harm to the named targets.

By raising the 'true threat' defense, the defendant is opening the door for
the Government to prove the context of the threats. This means that a good
deal of evidentiary material which might otherwise be subject to objection
will be admissible under F.R.E. 404(b) to prove the context of the threats
-- specifically, motive, intent, plan, knowledge, and identity. The Ninth
Circuit has made it clear that context is critical to determining whether
a statement rises to the level of a 'true threat.' Lovell,
supra, at 372. The Government has already given the defense advance
notice of its intent to use such material, as required by Rule 404(b). Defense
counsel can assume that we intend to offer any or all of the evidence of
other acts described in the statement of facts in this brief. These include,
but are not limited to, the defendant's championing of the cause of James
Dalton Bell (a violent felon who had set off a chemical attach on an IRS
building and had been mixing a chemical variant of Sarin gas prior to his
own arrest), his acknowledgement to a reporter (Declan McCullagh) of having
placed an explosive or incendiary device in a courthouse in Estevan,
Saskatchewan, his possession of materials on bomb-making, and his assault
on an IRS officer in Tucson.

When Carl Johnson made himself the champion of the cause of James Dalton
Bell, he aligned himself with a violent man who had committed a physical
attack on an IRS building and had been experimenting with the chemical
ingredients of deadly nerve agents before he was ultimately arrested. Even
though the Government is not required to prove that Mr. Johnson had the
inclination or ability to carry out his threats, seeTwine,
supra, any doubts about the plausibility or seriousness
of his threats are resolved by the fact that Mr. Johnson acknowledged
responsibility for a explosive-device that had been placed in a Canadian
courthouse. He acknowledged the bomb incident in correspondence with Declan
McCullagh, the reporter for Time Magazine's Internet publication. Materials
on bomb-making were found in his possession at the time of his arrest in
Arizona. This evidence, coupled with the photographs of dismembered people
and graphic depictions of the effects of physical violence which he downloaded
from the Internet, is all part of the context in which his threats must be
assessed. Considered in this context, the threats must be viewed in the most
serious possible light.

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.

Fed. R. Evid. 404(b).

Rule 404(b) is a rule of inclusion. United States v. Young, 573
F.2d 1137, 1139-40 (9th Cir. 1978). Thus, evidence of other crimes or acts
evidence is admissible if it is relevant to an issue other than the defendant's
character or criminal propensity; the rule "generally allows admission of
other crimes or acts evidence 'except where it tends to prove criminal
disposition.' " United States v. DeSalvo, 41 F.3d 505 (9th Cir.
1994) (quoting United States v.Rocha, 553 F.2d 615, 616
(9th Cir. 1977)). See also, United States v. Bowman, 720 F.2d 1103,
1105 (9th Cir. 1983).

Evidence of other acts is admissible pursuant to Rule 404(b) if the evidence:

(1) proves a material element of the crime that is the subject of the trial;

7 The degree of similarity required for admission of evidence pursuant
to Rule 404(b) depends on the purpose for which the evidence of prior crimes
is offered in a particular case. United States v. Bailleaux, 685
F.2d 1105, 1110 n.l (9th Cir. 1982). Prior-crimes evidence admitted to show
a defendant's intent, knowledge, or motive, for example, does not require
a high degree of similarity. See United States v. Sinn, 622 F.2d
415, 416 (9th Cir.), cert. denied, 449 U.S. 843 (1980).

8 This part of the test sets a "low threshold." United States
v. Houser, 929 F.2d 1369 1373 (9th Cir. 1990). The evidence must be
sufficient "to support a finding by the jury that the defendant committed
the similar act." Huddleston v. United States, 485 U.S. 681, 686
(1988).

9 Although there is no "bright line rule concerning remoteness in
time," seven or eight years is not too remote where the acts are similar
and relevant. United States v. Rude, 88 P.3d 1538, 1550 (9th Cir.
1996), cert. denied, ___ U.S. ___,117 S. Ct. 690 (1997);
see also United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989)(acts
occurring twelve years before not too remote), cert. denied, 494
U.S. 1083 (1990); United States v. Hadley, 918 F.2d 848, 851 (9th
Cir. 1990) (acts occurring ten years before not too remote).

10 Rule 403 provides:

Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.

Fed. R. Evid. 403. " 'Unfair prejudice' refers to an 'undue tendency
to suggest decision on an improper basis, commonly, though not necessarily,
an emotional one' or 'evidence designed to elicit a response from the jurors
that is not justified by the evidence.'" United States v.Ellis,
147 F.3d 1131, 1335 (9th Cir. 1998) (quoting 2 J. Weinstein & M.
Berger, Weinstein's Federal Evidence § 403.04[1][b] (2d ed. 1997)).

Evidence of acts that might be subject to analysis under Fed. R. Evid. 404(b)
or 403 in one context, however, is admissible without such scrutiny when
"the evidence concerning the [other] act and the evidence concerning the
crime charged are inextricably intertwined." United States v. Soliman,
813 F.2d 277, 279 (9th Cir.1987) (quoting United States v. Aleman,
592 F.2d 881, 885 (5th Cir.1979)). See also United States v. Mundi,
892 F.2d 817, 820 (9th Cir.1989) ("[T]he evidence [the Government] presented
was 'inextricably intertwined' with, and 'part of the same transaction' ac,
the conduct alleged in the indictment"), cert. denied, 498 U.S.
1119 (1991). Thus, evidence concerning other acts committed by the defendant
is admissible for the purpose of providing the context in which the crime
occurred. United States v. Moore, 735 F.2d 289, 292 (9th Cir. 1984).
A jury is not expected to make its decision in a void. Jurors are entitled
to know the background and circumstances leading to the criminal charges
at issue. United States v. Daly, 974 F.2d 1215, 1217 (9th Cir. 1992).
Such evidence is "inextricably intertwined" to the charges under indictment
and cannot be excluded through Rule 404(b) or Rule 403. See e.g., United
States v. Nunez, 483 F.2d 453, 455 (9th Cir.) (evidence of prior acts
committed in course of same conspiracy are admissible), cert. denied,
414 U.S. 1076 (1973). Evidence concerning other acts committed by the
defendant is admissible for the purpose of providing the context in which
the crime occurred. United States v. Moore, 735 F.2d 289, 292 (9th
Cir. 1984).

The evidence is admissible under Rule 404(b). It goes directly to defendant's
motive, opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident, all permissible purposes under the rule.
It is virtually identical to the charged crimes. Finally, even if the images
and testimony are prejudicial, any such prejudice does not substantially
outweigh the highly probative nature of the evidence, and the evidence should
therefore be admitted.

As indicated, we do not believe that, under any measure, the probative value
of the evidence we propose to offer is substantially outweighed by the danger
of unfair prejudice. See Fed. R. Crim. P. 403. Nevertheless, we
will submit a proposed instruction, to be given to the jury prior to introduction
of any evidence admitted pursuant to Rule 404(b), and a second time during
final instructions, explaining the limited purpose for which they are to
consider evidence of the defendant's other acts. Such instructions have been
held to reduce or eliminate any potential prejudice. United States v.
O'Brien, 601 F.2d 1067, 1070 (9th Cir. 1979). See United States
v. Bradshaw, 690 F.2d 704, 709 (9th Cir. 1982), cert. denied, 463
U.S. 1210 (1983).

5. Evidence of the Defendant's Use of Aliases.

To show that the defendant was aware of the seriousness of his threats, the
Government will offer evidence that he took elaborate steps -- including
the use of multiple aliases -- to conceal his authorship of the threats.
That he intended his e-mails to be understood as threats can be inferred
from his fervent desire to avoid detection as the source of the threats.
By contrast, someone engaged in purely political speech would have no reason
to hide his identity in a free society. Carl Johnson was trying to hide his
authorship from law enforcement, precisely because Carl Johnson knew that
he was publicly making specific threats of the sort that could land him in
jail. Alias evidence will be offered.

The fact that a defendant has used an alias is admissible and is not unduly
prejudicial "when it forms the background of the case or is relevant to the
facts of the charge." United States v. Jorge-Salon, 734 F.2d 789,
791-92 (11th Cir. 1984) ("The use of an alias . . .in evidence is permissible
if it is necessary to connect the defendants with the acts charged.").
Seealso, United States v. Saavedra, 684 F.2d 1293,
1299 (9th Cir. 1982) (reference to alias not error where defendant's use
of alias was supported by relevant evidence in the record); United States
v. Virges, 723 F.2d 666, 672 (9th Cir. 1984) (alias relevant to defendant's
attempt to avoid detection).

6. Expert Testimony

In its case-in-chief, the United States will offer testimony
of several witnesses who will provide technical explanations of the Internet
and computer operations. Most of these witnesses are actually fact witnesses
who have technical expertise in the subjects about which they will be testifying.
RCMP Corporal Steve Foster will testify about his investigation of defendant's
"RCMP Hate Page" and his searches of defendant's residence and comp[uter.
(Note: Insertions of this and the next paragraph are interpretations of
text-copier omissions.)] Corporal Foster has attended and completed computer
crime investigative training p[rogram of] the Canadian Police College,
including training in conducting computer forensics an[d] searches.
He carries the title of Technological Crime Investigator. He also has
exp[erience] with computer programming, including Hypertext Markup
Language (HTML), the l[anguage] used for World Wide Web pages.

Shan Noyes and Dan Deck of Sympatico, the Internet Service Provider where
[the] defendant had his account, will testify regarding that account
and its use, and will explain the Internet, e-mail, and the World Wide Web
in the course of their testimony. Both of them are Technical Analysts for
Sympatico, and have worked there for five or more years.

Several Treasury employees ~ including Cindy Brown, Stuart Alexander, John
Rabatin, and Jeffrey Gordon -- will testify regarding the computers of Jim
Bell and defendant, the e-mail and computer files contained therein, and
computer files from diskettes obtained from defendant and John Gilmore. Jeffrey
Gordon additionally may testify about technical aspects of the case that
he encountered during the investigation. Each of these Treasury employees
has experience and/or training in the use of electronic data and computers.

In addition, there are a few Government witnesses who are experts in the
more traditional sense. First, Susan Crandell, a fingerprint expert with
the Treasury Inspector General for Tax Administration Forensic Science Library,
will testify to her identification of defendant's latent fingerprints on
the handwritten letters marked as Government Exhibits 90 and 91. She is a
highly trained and experienced examiner, and has been qualified many times
to testify as an expert. [A copy of her credentials is being furnished to
the defendant, and will be made available to the court before trial.]

Second, one or two witnesses will testify regarding PGP and encryption. Portland
Police Detective Steve Russell will testify regarding the operation of PGP
encryption software and defendant's use of it, as reflected in his computer
files, his PGP keys, and e-mail messages associated with him. Detective Russell
has worked in computer crime and computer forensic work for nearly ten years,
has taught computer forensics, and has particular training and experience
in encryption and PGP. Professor Sarah Easton Mocas of Portland State University
also may testify, regarding cryptology, encryption, PGP, and forged keys.
Professor Mocas has a Ph.D. in Computer Science from Northeastern University,
has written extensively on complexity theory and cryptology, and teaches
courses in the same subjects.

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise.

In the present case, the technical knowledge of the above witnesses -- all
of whom have qualifying technical skills, experience and/or training -- without
question will assist the jury to understand the evidence and determine facts
in issue.

7. Summaries and Charts

The United States may make use of summaries or charts summarizing computer
data, including charts comparing defendant's telephone records and Internet
login times. Such summaries are admissible pursuant to Rule 1006, which provides:

The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented m the form of a chart,
summary or calculation. The originals, or duplicates, shall be made available
for examination or copying, or both, by other parties at reasonable time
and place. The court may order that they be produced in court.

Fed. R. Evid. 1006. The Ninth Circuit has ruled that if the requirements
of Rule 1006 are satisfied, summaries may be used and may be admitted into
evidence. See United States v. Krasn, 614 F.2d 1229, 1237-38 (9th
Cir. 1980); United States v. Gardner, 611 F.2d 770, 776 (9th Cir.
1980). All of the data and information underlying any such summaries has
been made available to defendant during pretrial discovery. Rule 1006 does
not require that it be literally impossible for the jury to examine the
underlying records before a summary may be admitted. United States v.
Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985); United States v.
Scales, 594 F.2d 558, 562 (6th Cir.), cert. denied, 441 U.S.
946 (1979).

It is also likely that the underlying data will be offered into evidence;
the fact that the underlying documents are already in evidence does not mean
that they can be "conveniently examined in court." United States v. Stephens,
779 F.2d at 239; United States v. Lemire, 720 F.2d 1327, 1347
(D.C. Cir. 1983), cert. denied, 467 U.S. 1226 (1984). The Government
will propose that summaries be admitted into evidence and that the jury be
permitted to have them while they deliberate. The Government will submit
an appropriate instruction concerning these summaries as part of its proposed
Jury Instructions.

IV. CONCLUSION

The Government respectfully submits this Trial Memorandum
to aid the court in trying this matter before the jury.